@JUDGMENTTAG-ORDER
B.P. Jeevan Reddy, J.@mdashThis petition raises a question concerning the freedom of press vis-a-vis the right to privacy of the citizens of this
country. It also raises the question as to the parameters of the right of the press to criticize and comment on the acts and conduct of public officials.
2. The first petitioner is the editor, printer and publisher of a Tamil weekly magazine ''Nakkheeran'', published from Madras. The second petitioner
is the associate editor of the magazine. They are seeking issuance of an appropriate, writ, order or direction under Article 32 of the Constitution,
restraining the respondents, viz., (1) State of Tamil Nadu represented by the Secretary, Home Department, (2) Inspector General of Prisons,
Madras and (3) Superintendent of Prisons (Central Prison), Salem, Tamil Nadu from taking any action as contemplated in the second ''
respondent''s communication dated June 15, 1994 and further restraining them from interfering with the publication of the autobiography of the
condemned prisoner, Auto Shankar, in their magazine. Certain other reliefs are prayed for in the writ petition but they are not pressed before us.
3. Shankar @ Gauri Shankar @ Auto Shankar was charged and tried for as many as six murders. He was convicted and sentenced to death by
the learned Sessions Judge, Chenglepat on May 31, 1991 which was confirmed by the Madras High Court on July 17,1992. His appeal to this
Court was dismissed on April 5, 1994. It is stated that his mercy petition to the President of India is pending consideration.
4. The petitioners have come forward with the following case : Auto Shankar wrote his autobiography running into 300 pages while confined in
Chenglepat sub-jail during the year, 1991. The autobiography was handed over by him to his wife, Smt. Jagdishwari, with the knowledge and
approval of the jail authorities, for being delivered to his advocate, Sri Chandrasekharan. The prisoner requested his advocate to ensure that his
autobiography is published in the petitioners'' magazine, ''Nakkheeran''. The petitioners agreed to the same. Auto Shankar affirmed this desire in
several letters written to his advocate and the first petitioner. The autobiography sets out the close nexus between the prisoner and several LAS,
and other officers, some of whom where indeed his partners in several crimes. The presence of several such officers at the house warming
ceremony of Auto Shankar''s house is proved by the video cassette and several photographs taken on the occasion. Before commencing the serial
publication of the autobiography in their magazine, the petitioner announced in the Issue dated May 21, 1994 that very soon the magazine would
be coming out with the sensational life history of Auto Shankar. This announcement sent shock waves among several police and prison officials
who were afraid that their links with the condemned prisoner would be exposed. They forced the said prisoner, by applying third degree methods,
to write letters addressed to the second respondent (Inspector General of Prisons) and the first petitioner requesting that his life-story should not
be published in the magazine. Certain correspondence ensued between the petitioners and the prison authorities in this connection. Ultimately, the
Inspector General of Prisons (R-2) wrote the impugned letter dated June 15, 1994 to the first petitioner. The letter states that the petitioner''s
assertion that Auto Shankar had written his autobiography while confined in jail in the year 1991 is false. It is equally false that the said
autobiography was handed over by the said prisoner to his wife with the knowledge and approval of the prison authorities. The prisoner has
himself denied the writing of any such book. It is equally false that any power of attorney was executed by the said prisoner in favour of his
advocate, Sri Chandrasekharan in connection with the publication of the alleged book. If a prisoner has to execute a power of attorney in favour of
another, it has to be done in the presence of the prison officials as required by the prison Rules; the prison records do not bear out execution of
any such power of attorney. The letter concludes, ""from the above facts, it is clearly established that the serial in your magazine under the caption
Shadowed Truth"" or ""Auto Shankar''s dying declaration"" is not really written by Gauri Shankar but it is written by someone else in his name.
Writing an article in a magazine in the name of a condemned prisoner is against prison rules and your claim that the power of attorney is given by
the prisoner is unlawful. In view of all those it is alleged that your serial supposed to have written by Auto Shankar is (false) since with an ulterior
motive for this above act there will arise a situation that we may take legal action against you for black mailing. Hence, I request you to stop
publishing the said serial forthwith.
5. The petitioners submit that the contents of the impugned letter are untrue. The argument of jeopardy to prisoners'' interest is a hollow one. The
petitioners have a right to publish the said book in their magazine as desired by the prisoner himself. Indeed, the petitioners have published parts of
the said autobiography in three issues of their magazine dated June 11, 1994, June 18, 1994 and June 22,1994 but stopped further publication in
view of the threatening tone of the letter dated June 15, 1994. The petitioners have reasons to believe that the police authorities may swoop down
upon their printing press, seize the issues of the magazine besides damaging the press and their properties, with a view to terrorise them. On a
previous occasion when the petitioners'' magazine published, on August 16, 1991, an investigative report of tapping to telephones of opposition
leaders by the State Government, the then editor and publisher were arrested, paraded, jailed and subjected to the third degree methods. There
have been several instances when the petitioners'' press was raided and substantial damage done to their press and properties. The petitioners are
apprehensive that the police officials may again do the same since they are afraid of their links with the condemned prisoner being exposed by the
publication of the said autobiography. The petitioners assert the freedom of press guaranteed by Article 19(1)(a), which, according to them,
entitles them to publish the said autobiography. It is submitted that the condemned prisoner has also the undoubted right to have his life-story
published and that he cannot be prevented from doing so. It is also stated in the writ petition that before approaching this Court by way of this writ
petition, they had approached the Madras High Court for similar reliefs but that the office of the High Court had raised certain objections to the
maintainability of the writ petition. A learned Single Judge of the High Court, it is stated, heard the petitioners in connection with the said objections
but no orders were passed thereon till the filing of the writ petition.
6. The Respondent Nos. 2 and 3 have filed a counter-affidavit, sworn-to by Sri T.S. Panchapakesan, Inspector General of Prisons, State of Tamil
Nadu. At the outset, it is submitted that the writ petition filed by the petitioners in the High Court was dismissed by the learned Single Judge on
June 28, 1994 holding inter alia that the question whether the said prisoner had indeed written his autobiography and authorised the petitioners to
publish the same is a disputed question of fact. This was so held in view of the failure of the learned Counsel for the petitioners to produce the
learned Counsel for the petitioners to produce the alleged letters written by the prisoner to his counsel, or to the petitioners, authorising them to
publish his autobiography. It is submitted that the letter dated June 15, 1994 was addressed to the first petitioner inasmuch as ""there was a genuine
doubt regarding the authorship of the autobiography alleged to have been written by the condemned prisoner while he was in prison and which
purportedly reached his wife. Besides, it was also not clear whether the said prisoner had as a matter of fact authorised the petitioner to publish the
said autobiography. In the context of such a disputed claim both as to authenticity as well as the authority to publish the said autobiography, the
said communication was addressed to the petitioners herein, since the petitioners have threatened to publish derogatory and scurrilous statements
purporting to (be) based on material which are to be found in the disputed autobiography."" It is submitted that the allegation that a number of LAS,
IPS and other officers patronized the condemned prisoner in his nefarious activities is baseless. ""It is only in the context of such a situation coupled
with the fact that the petitioner might under the guise of such an autobiography tarnish the image of the persons holding responsible positions in
public institution that the communication dated 15.6.94 was sent to him"", say the respondents. They also denied that they subjected the said
prisoner to third degree methods to pressurise him into writing letters denying the authorisation to the petitioners to publish his life-story.
7. Neither Auto Shankar nor his wife - nor his counsel - are made parties to this writ petition. We do not have their version on the disputed
question of fact, viz., whether Auto Shankar has indeed written his autobiography and/or whether he had requested or authorised the petitioners to
publish the same in their magazine. In this writ petition under Article 32 of the Constitution, we cannot go into such a disputed question of fact. We
shall, therefore, proceed on the assumption that the said prisoner has neither written his autobiography nor has he authorised the petitioners to
publish the same in their magazine, as asserted by the writ petitioners. We must, however, make it clear that ours is only an assumption for the
purpose of this writ petition and not a finding of fact. The said disputed question may have to be gone into, as and when necessary, before an
appropriate court or forum, as the case may be.
8. On the pleadings in this petition, following questions arise : (1) whether a citizen of this country can prevent another person from writing his life-
story or biography? Does such unauthorised writing infringe the citizen''s right to privacy? Whether the freedom of press guaranteed by Article
19(1)(a) entitle the press to publish such unauthorised account of a citizen''s life and activities and if so to what extent and in what circumstances?
What are the remedies open to a citizen of this country in case of infringement of his right to privacy and further in case such writing amounts to
defamation?
(2)(a) Whether the government can maintain an action for its defamation?
(b) Whether the government has any legal authority to impose prior restraint on the press to prevent publication of material defamatory of its
officials? and
(c) Whether the public officials, who apprehend that they or their colleagues may be defamed, can impose a prior restraint upon the press to
prevent such publication?
(3) Whether the prison officials can prevent the publication of the life-story of a prisoner on the ground that the prisoner being incarcerated and
thus not being in a position to adopt legal remedies to protect his rights, they are entitled to act on his behalf?
QUESTION NOS. 1 AND 2:
9. The right to privacy as an independent and distinctive concept originated in the field of Tort law, under which a new cause of action for damages
resulting from unlawful invasion of privacy was recognised. This right has two aspects which are but two faces of the same coin: (1) the general law
of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the
right to privacy which protects personal privacy against unlawful governmental invasion. The first aspect of this right must be said to have been
violated where, for example, a person''s name or likeness is used, without his consent, for advertising - or non-advertising - purposes or for that
matter, his life-story is written - whether laudatory or otherwise - and published without his consent as explained hereinafter. In recent times,
however, this right has acquired a constitutional status. We shall proceed to explain how? Right to privacy is not enumerated as a fundamental right
in our Constitution but has been inferred from Article 21. The first decision of this Court dealing with this aspect is 279388 . A more elaborate
appraisal of this right took place in a later decision in 284762 wherein Mathew, J., speaking for himself, Krishna Iyer and Goswami, JJ. traced the
origins of this right and also pointed out how the said right has been dealt with by the United States Supreme Court in two of its well-known
decisions in Griswold v. Connecticut [1965] 385 U.S. 479 : 14 L.Ed. 2d. 510 and Roe v. Wade [1973] 410 U.S. 113. After referring to Kharak
Singh and the said American decisions, the learned Judge stated the law in the following words:
...privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior.
If the Court does find that a claimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling State
interest test....
...privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy
must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the
context of other rights and values.
Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child
rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characterstics
of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a
claimed right must be a fundamental right implicit in the concept of ordered liberty....
As Ely says :
There is nothing to prevent one from using the word ''privacy'' to mean the freedom to live one''s life without governmental interference. But the
Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. [See the Wages of Crying Wolf: A Comment on
Roe v. Wade 82 Yale LJ 920, 932.]
There are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause
offence resulting from the mere thought that individuals might be engaging in such activities and that such ''harm'' is not constitutionally protectible by
the State. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a
sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves,
an image that may reflect the values of their peers rather than the realities of their natures. [See 26 Stanford Law Rev. 1161, 1187]
The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the
right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy
as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute.
The European Convention on Human Rights, which came into force on September 3, 1953, represents a valiant attempt to tackle the new
problem. Article 8 of the Convention is worth citing [See ""Privacy and Human Rights"", Ed. AH robertson, p. 176]:
1. Every one has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals or for the protection of the rights and freedoms of others.
10. Since the right to privacy has been the subject matter of several decisions in the United States, it would be appropriate to briefly refer to some
of the important decisions in that country.
11. The right to privacy was first referred to as a right and elaborated in the celebrated article of Warren and Brandies (later Mr. Justice Brandies)
entitled ""The right to privacy"" published in 4 Harward Law Review 193, in the year 1890.
12. Though the expression ""right to privacy"" was first referred to in Olmstead v. United States [1928] 277 U.S. 438 : 72 L.Ed. 944, it came to be
fully discussed in Time Inc., v. Hill [1967] 385 U.S. 374 : 17 L.Ed. 2d. 456. The facts of the case are these : on a particular day in the year 1952,
three escaped convicted intruded into the house of James Hill and held him and members of his family hostage for nineteen hours, whereafter they
released them unharmed. The police immediately went after the culprits, two of whom were shot dead. The incident became prime news in the
local newspapers and the members of the press started swarming the Hill home for an account of what happened during the hold-up. The case of
the family was that they were not ill-treated by the intruders but the members of the press were not impressed. Unable to stop the siege of the
press correspondents, the family shifted to a far-away place. ""Life"" magazine sent its men to the former home of Hill family where they re-enacted
the entire incident, and photographed it, showing inter alia that the members of the family were ill-treated by the intruders. When ""Life"" published
the story, Hill brought a suit against Tune Inc., publishers of ""Life"" magazine, for invasion of his privacy. The New York Supreme Court found that
the whole story was ""a piece of commercial fiction"" - and not a true depiction of the event - and accordingly confirmed the award of damages.
However, when the matter was taken to United States Supreme Court, it applied the rule evolved by it in New York Times Co. v. Sullivan [1954]
376 U.S. 254 : 11 L.Ed. 2d. 868 and set aside the award of damages holding that the jury was not properly instructed in law. It directed a re-trial.
Brennan, J. held:
We hold that the constitutional protections for speech and press preclude the application of the New York statute to redress false reports of
matters of public interest in the absence of proof that the defendant published the report with the knowledge of its falsity or in reckless disregard of
the truth.
(Emphasis added)
The learned Judge added :
We create grave risk of serious impairment of the indispensable services of a free press with the impossible burden of verifying to a certainty the
facts associated in a news article with a person''s name, picture or portrait, particularly as related to non-defamatory matter....
...Those guarantees are not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the press assures the
maintenance of our political system and an open society.... That books, newspapers and magazines are published and sold for profit does not
prevent them from being a form of expression whose liberty is safeguarded.
13. The next relevant decision is in Cox Broadcasting Corporation v. Cohn (1975) 420 U.S. 469 : 43 L.Ed. 2d. 328. A Georgia law prohibited
and punished the publication of the name of a rape victim. The appellant, a reporter of a newspaper obtained the name of the rape victim from the
records of the court and published it. The father of the victim sued for damages. White, J. recognised that ""in this sphere of collision between
claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society
but chose to decide the case on the narrow question whether the press can be said to have violated the said statute or the right to privacy of the
victim by publishing her name, having obtained it from public records. The learned Judge held that the press cannot be said to have violated the
Georgia law or the right to privacy if it obtains, the name of the rape victim from the public records and publishes it. The learned Judge held that the
freedom of press to publish the information contained in the public records is of critical importance to the system of government prevailing in that
country and that, may be, in such matter ""citizenry is the final judge of the proper conduct of public business"".
14. Before proceeding further, we may mention that the two decisions of this Court referred to above (Kharak Singh and Gobind) as well as the
two decisions of the United States Supreme Court, Griswold and Roe v. Wade, referred to in Gobind, are cases of governmental invasion of
privacy. Kharak Singh was a case where the petitioner was put under surveillance as defined in Regulation 236 of the U.P. Police Regulations. It
involved secret picketing of the house or approaches to the house of the suspect, domiciliary visits at night, periodical enquiries by police officers
into repute, habits, association, income or occupation, reporting by police constables on the movements of the person etc. The regulation was
challenged as violative of the fundamental rights guaranteed to the petitioner. A Special Bench of seven learned Judges held, by a majority, that the
regulation was unobjectionable except to the extent it authorised domiciliary visits by police officers. Though right to privacy was referred to, the
decision turned on the meaning and content of ""personal liberty"" and ""life"" in Article 21. Gobind was also a case of surveillance under M.P. Police
Regulations. Kharak Singh was followed even while at the same time elaborating the right to privacy, as set out hereinbefore.
15. Griswold was concerned with a law made by the State of Connecticut which provided a punishment to ""any person who uses any drug,
medicinal article or instrument for the purpose of preventing conception..."". The appellant was running a center at which information instruction and
medical advice was given to married persons as to the means of preventing conception. They prescribed contraceptives for the purpose. The
appellant was prosecuted under the aforesaid law, which led the appellant to challenge the constitutional validity of the law on the grounds of First
and Fourteenth Amendments. Douglas, J., who delivered the main opinion, examined the earlier cases of that court and observed :
...specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance....
Various guarantees creates zones of privacy
The present case, then concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it
concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means
having a maximum destructive impact upon the relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court,
that a ""governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms"". NAACP v. Alabama.... Would we allow the police to search the
sacred precincts of marital bedrooms of telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding
the marriage relationship.
We deal with a right of privacy order than the Bill of Rights - older than our political parties, older then our schools system. Marriage is a coming
together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not
causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose
as any involved in our prior decisions.
16. Roe v. Wade [1973] 410 U.S. 113 concerned the right of an unmarried pregnant woman to terminate her pregnancy by abortion. The relevant
Texas Law prohibited abortions except with respect to those procured or admitted by medical advice for the purpose of saving the life of the
mother. The constitutionality of the said law was questioned on the ground that the said law improperly invaded the right and the choice of a
pregnant woman to terminate her pregnancy and therefore violative of ""liberty"" guaranteed under Fourteenth Amendment and the right to privacy
recognised in Griswold. Blackmun, J., who delivered the majority opinion, upheld the right to privacy in the following words :
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however,... the Court has recognised that a right of personal
privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices
have, indeed, found at least the roots of that right in the First Amendment; in the penumbras of the Bill of Rights; in the Ninth Amendment; or in the
concept of liberty guaranteed by the first section of the Fourteenth Amendment. These decisions make it clear that only personal right that can be
deemed ""fundamental"" or ""implicit in the concept of ordered liberty."" Palko v. Connecticut, are included in this guarantee of personal privacy. They
also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia; procreation, Skinner v. Oklahoma;
contraception; Eisenstadt v. Baird; family relationships, Prince v. Massachusetts; and child rearing and education, Pierce v. Society of Sisters,
Meyer v. Nebraska.
This right of privacy, whether it be founded in the Fourteenth Amendment''s concept of personal liberty and restrictions upon state action, as we
feel it is, or, as the District Court determined, in the Ninth Amendment''s reservation of rights to the people, is broad enough to encompass a
woman''s decision whether or not to terminate her pregnancy.
17. Though this decision received a few knocks in the recent decision in Planned Parenhood v. Casey [1992] 120 L. Ed. 2d. 683, the central
holding of this decision has been left untouched - indeed affirmed.
18. We may now refer to the celebrated decision in New York Times v. Sullivan, referred to and followed in Times Inc. v. Hill. The following are
the facts: in the year 1960, the New York Times carried a full page paid advertisement sponsored by the ''Committee to Defend Martin Luther
King and The Struggle for Freedom in the South'', which asserted or implied that law enforcement officials in Montgomery, Alabama, had
improperly arrested and harassed Dr. King and other civil rights demonstrators on various occasions. Respondent, who was the elected Police
Commissioner of Montgomery, brought an action for libel against the Times and several of the individual signatories to the advertisement. It was
found that some of the assertions contained in the advertisement were inaccurate. The Alabama courts found the defendants guilty and awarded
damages in a sum of $500,000. which was affirmed by the Alabama Supreme Court. According to the relevant Alabama law, a publication was
libelous per se"" if the words ""tend to injure a person...in his reputation"" or to ""bring (him) into public contempt"". The question raised before the
United States Supreme Court was whether the said enactment abridged the freedom of speech and of the press guaranteed by the First and
Fourteenth Amendments. In the leading opinion delivered by Brennan, J., the learned Judge referred in the first instance to the earlier decisions of
that court emphasising the importance of freedom of speech and of the press and observed:
Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth - whether
administered by judges, juries, or administrative officials - and especially one that puts the burden of proving the truth on the speaker....A rule
compelling the critic of official conduct to guarantee the truth of all his factual assertions-and to do so on pain of liberty judgments virtually unlimited
in amount-leads to... ""self-censorship."" Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only
false speech will be deterred. Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs
that the alleged libel was true in all its factual particulars.... Under such a rule, would-be critics of official conduct may be deterred form voicing
their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of
the expense of having to do so. They tend to make only statements which ""steer far wider of the unlawful zone."" ...The rule thus dampens the vigor
and limits the variety of public debate. It is inconsistent with the, First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood
relating to his official conduct unless he proves that the statement was made with ""actual malice"" - that is, with knowledge that it was false or with
reckless disregard of whether it was false or not....
(emphasis added)
19. Black, J. who was joined by Douglas, J. concurred in the opinion but on a slightly different ground. He affirmed his belief that ""the First and
Fourteenth Amendments not merely ""delimit"" a State''s power to award damages to ""public officials against critics of their official conduct"" but
completely prohibit a State from exercising such a power.
20. The principle of the said decision has been held applicable to ""public figures"" as well. This is for the reason that public figures like public
officials often play an influential role in ordering society. It has been held that as a class the public figures have, as the public officials have, access
to mass media communication both to influence the policy and to counter criticism of their views and activities. On this basis, it has been held that
the citizen has a legitimate and substantial interest in the conduct of such persons and that the freedom of press extends to engaging in uninhibited
debate about the involvement of public figures in public issues and events.
21. The principle of Sullivan was carried forward - and this is relevant to the second question arising in this case - in Derbyshire County Council v.
Times Newspapers Ltd. [1993] 2 W.L.R. 449, a decision rendered by the House of Lords. The plaintiff, a local authority brought an action for
damages for libel against the defendants in respect of two articles published in Sunday Times questioning the propriety of investments made for its
superannuation fund. The articles were headed ""Revealed: Socialist tycoon deals with Labour Chief and ""Bizarre deals of a council leader and the
media tycoon"", A preliminary issue was raised whether the plaintiff has a cause of action against the defendant. The Trial Judge held that such an
action was maintainable but on appeal the Court of Appeal held to the contrary. When the matter reached the House of Lords, it affirmed the
decision of the Court of Appeal but on a different ground. Lord Keith delivered the judgment agreed to by all other learned Law Lords. In his
opinion, Lord Keith recalled that in Attorney General v. Guardian Newspapers Ltd. 2 (1990) 1 A.C. 109, popularly known as ""Spy catcher
case"", the House of Lords had opined that ""there are rights available to private citizens which institutions of...government are not in a position to
exercise unless they can show that it is in the public interest to do so."" It was also held therein that not only was there no public interest in allowing
governmental institutions to sue for libel, it was ""contrary to the public interest because to admit such actions would place an undesirable fetter on
freedom of speech"" and further that action for defamation or threat of such action ""inevitably have an inhibiting effect on freedom of speech"". The
learned Law Loard referred to the decision of the United States Supreme Court in New York Times Co. v. Sullivan and certain other decisions of
American Courts and observed - and this is significant for our purposes - ""while these decisions were related most directly to the provisions of the
American Constitution concerned with securing freedom of speech, the public interest considerations which under laid them are no less valid in this
country. What has been described as ""the chilling effect"" induced by the threat of civil actions for libel is very important. Quite often the facts which
would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available"". Accordingly,
it was held that the action was not maintainable in law.
22. Reference in this connection may also be made to the decision of the Judicial Committee of the Privy Council in Leonard Hector v. Attorney
General of Antiqua and Barbuda (1990) 2 A.C. 312 which arose u/s 33(B) of the Public Order Act, 1972 (Antigua and Barbuda). It provided
that any person who printed or distributed any false statement which was ""likely to cause fear or alarm in or to the public or to disturb the public
peace or to undermine public confidence in the conduct of public affairs"" shall be guilty of an offence. The appellant, the editor of a newspaper,
was prosecuted under the said provision. He took the plea that the said provision contravened Section 12(1) of the Constitution of Antigua and
Barbuda which provided that no person shall be hindered in the enjoyment of freedom of expression. At the same time, Sub-section (4) of Section
12 stated that nothing contained in or done under the authority of law was to be held inconsistent with or in contravention of the Sub-section 12(1)
to the extent that the law in question made provisions reasonably required in the interest of public order. (These provisions roughly correspond to
Articles 19(1)(a) and 19(2) respectively.) The Privy Council upheld the appellant''s plea and declared Section 12(1) ultra vires the Constitution. It
held that Section 33(B) is wide enough to cover not only false statements which are likely to affect public order but also those false statements
which are not likely to affect public order. On that account, it was declared to be unconstitutional. The criminal proceedings against the appellant
was accordingly quashed. In the course of his speech, Lord Bridge of Harwich observed thus:
In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public
administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious
and objectionable kind. At the same time it is no less obvious that the very purpose of criticism leveled at those who have the conduct of public
affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would
make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing a statutory
provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion.
23. The question is how far the principles emerging from the United States and English decisions are relevant under our constitutional system. So
far as the freedom of press is concerned, it flows from the freedom of speech and expression guaranteed by Article 19(1)(a). But the said right is
subject to reasonable restrictions placed thereon by an existing law or a law made after the commencement of the Constitution in the interests of or
in relation to the several matters set out therein. Decency and defamation are two of the grounds mentioned in Clause (2). Law of Torts providing
for damages for invasion of the right to privacy and defamation and Sections 499/500 I.P.C. are the existing laws saved under Clause (2). But
what is called for today - in the present times - is a proper balancing of the freedom of press and said laws consistent with the democratic way of
life ordained by the Constitution. Over the last few decades, press and electronic media have emerged as major factors in our nation''s life. They
are still expanding - and in the process becoming more inquisitive. Our system of government demands - as do the systems of government of the
United States of America and United Kingdom - constant vigilance over exercise of governmental power by the press and the media among
others. It is essential for a good government. At the same time, we must remember that our society may not share the degree of public awareness
obtaining in United Kingdom or United States. The sweep of the First Amendment to the United States Constitution and the freedom of speech
and expression under our Constitution is not identical though similar in their major premises. All this may call for some modification of the principles
emerging from the English and United States decisions in their application to our legal system. The broad principles set out hereinafter are evolved
keeping in mind the above considerations. But before we set out those principles, a few more aspects need to be dealt with.
24. We may now consider whether the State or its officials have the authority in law to impose a prior restraint upon publication of material
defamatory of the State or of the officials, as the case may be? We think not. No law empowering them to do so is brought to our notice. As
observed in New York Times v. United States [1971] 40 U.S. 713, popularly known as the pentagon papers case, ""any system of prior restraints
of (freedom of) expression comes to this Court bearing a heavy presumption against its constitutional validity"" and that in such cases, the
government ""carries a heavy burden of showing justification for the imposition of such a restraint"". We must accordingly hold that no such prior
restraint or prohibition of publication can be imposed by the respondents upon the proposed publication of the alleged autobiography of ''Auto
Shankar'' by the petitioners. This cannot be done either by the State or by its officials. In other words, neither the government nor the officials who
apprehend , that they may be defamed, have the right to impose a prior restraint upon the publication of the alleged autobiography of Auto
Shankar. The remedy of public officials/public figures, if any, will arise only after the publication and will be governed by the principles indicated
herein.
25. We must make it clear that we do not express any opinion about the right of the State or its officials to prosecute the petitioners under Sections
499/500 I.P.C. This is for the reason that even if they are entitled to do so, there is no law under which they can prevent the publication of a
material on the ground that such material is likely to be defamatory of them.
QUESTION NO. 3:
26. It is not stated in the counter-affidavit that Auto Shankar had requested or authorised the prison officials or the Inspector General of Prisons,
as the case may be, to adopt appropriate proceedings to protect his right to privacy. If so, the respondents cannot take upon themselves the
obligation of protecting his right to privacy. No prison rule is brought to our notice which empowers the prison officials to do so. Moreover, the
occasion for any such action arises only after the publication and not before, as indicated hereinabove.
27. Lastly, we must deal with the objection raised by the respondent as to the maintainability of the present writ petition. It is submitted that having
filed a writ petition for similar reliefs in the Madras High Court, which was dismissed as not maintainable under a considered order, the petitioners
could not have approached this Court under Article 32 of the Constitution.
The petitioners, however, did disclose the above fact but they stated that on the date of their filing the writ petition, no orders were pronounced by
the Madras High Court. It appears that the writ petition was filed at about the time the learned Single Judge of the Madras High Court pronounced
the orders on the office objections. Having regard to the facts and circumstances of the case, we are not inclined to throw out the writ petition on
the said ground. The present writ petition can also be and is hereby treated as a SLP against the orders of the learned Single Judge of the High
Court.
28. We may now summarise the broad principles flowing from the above discussion:
(1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a ""right to be let alone"".
A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other
matters. None can publish anything concerning the above matters without his consent - whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages. Position
may, however, be different, if a person voluntarily thrusts himself into controversy or voluntarily invites or raises a controversy.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such
publication is based upon public records including court records. This is for the reason that once a matter becomes a matter of public record, the
right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the
opinion that in the interest of decency [Article 19(2)] an exception must be carved out to this rule, viz., a female who is the victim of a sexual
assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her name and the incident being publicised in
press/media.
(3) There is yet another exception to the Rule in (1) above - indeed, this is not an exception but an independent rule. In the case of public officials,
it is obvious, right to privacy, or for that matter, the remedy of action for damages is simply not available with respect to their acts and conduct
relevant to the discharge of their official duties. This is so even where the publication is based upon facts and statements which are not true, unless
the official establishes that the publication was made (by the defendant) with reckless disregard for truth. In such a case, it would be enough for the
defendant (member of the press or media) to prove that he acted after a reasonable verification of the facts; it is not necessary for him to prove that
what he has written is true. Of course, where the publication is proved to be false and actuated by malice or personal animosity, the defendant
would have no defence and would be liable for damages. It is equally obvious that in matters not relevant to the discharge of his duties, the public
official enjoys the same protection as any other citizen, as explained in (1) and (2) above. It needs no reiteration that judiciary, which is protected
by the power to punish for contempt of court and the Parliament and Legislatures protected as their privileges are by Articles 105 and 104
respectively of the Constitution of India, represent exceptions to this rule.
(4) So far as the government, local authority and other organs and institutions exercising governmental power are concerned, they cannot maintain
a suit for damages for defaming them.
(5) Rules 3 and 4 do not, however, mean that Official Secrets Act, 1923, or any similar enactment or provision having the force of law does not
bind the press or media.
(6) There is no law empowering the State or its officials to prohibit, or to impose a prior restraint upon the press/media.
29. We may hasten to add that the principles above mentioned are only the broad principles. They are neither exhaustive nor all-comprehending;
indeed no such enunciation is possible or advisable. As rightly pointed out by Mathew, J., this right has to go through a case-by-case development.
The concepts dealt with herein are still in the process of evolution.
30. In all this discussion, we may clarify, we have not gone into the impact of Article 19(1)(a) read with Clause (2) thereof on Sections 499 and
500 of Indian Penal Code. That may have to await a proper case.
31. Applying the above principles, it must be held that the petitioners have a right to publish, what they allege to be the life-story/autobiography of
Auto Shankar insofar as it appears from the public records, even without his consent or authorisation. But if they go beyond that and publish his
life-story, they may be invading his right to privacy and will be liable for the consequences in accordance with law. Similarly, the State or its
officials cannot prevent or restrain the said publication. The remedy of the affected public officials/public figures, if any, is after the publication, as
explained hereinabove.
32. The writ petition is accordingly allowed in the above terms. No costs.
